Fair Work Commission|2025-07-31

Michael John Chinnery v Morley City Nissan [2025] FWC 2244 (31 July 2025)

s 394 - Unfair dismissal

Application for an unfair dismissal remedy - minimum employment period not met - application out of time ‑‑ - application dismissed

[1] Michael John Chinnery (the Applicant) made an unfair dismissal application after having been dismissed by Morley City Nissan (the Respondent) on or around February - March 2022. The Applicant lodged his unfair dismissal application with the Commission on 21 March 2025, outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). The Respondent objected to the application on the basis that the application was filed outside of time and that the Applicant had not met the minimum employment period.

[2] Additional steps to communicate with the Applicant other than via email, were taken in the management of the matter. As the Applicant preferred to verbally communicate or communicate by way of filing hardcopy documents, these means of communication were adopted. The Applicant had informed Chambers that he had a cognitive impairment and difficulty replying to emails.

[3] The Applicant has been provided with the opportunity to address the two jurisdictional objections, and why he did not present for a telephone hearing on 15 July 2025 (notwithstanding multiple phone calls to him). Apart from not being available for the hearing, he has availed himself of the opportunity to file hard copy documents. However, based on all the materials provided, I find that the Applicant commenced his employment with the Respondent in October 2021 (as identified by the Applicant and Respondent) and his dismissal took effect on 7 February 2022, as evinced by the letter of termination and the acknowledgement by both Applicant and Respondent of the same. Therefore, the minimum employment period has not been met.

[4] For the sake of fulsomeness, I have, in addition, addressed that the Applicant's unfair dismissal application was lodged over three years late. Regarding whether the circumstances are exceptional such that an extension of time is warranted, they are not. It therefore proves unnecessary to consider whether it is fair and equitable for an extension to be granted.
[5] Whilst I have decided not to dismiss the Applicant's unfair dismissal application based on his non-attendance at the hearing, it is nevertheless the case that his unfair dismissal application is dismissed on the basis that he had not served the minimum employment period as provided by s 382(a) of the Act and there are no exceptional circumstances that warrant an extension of time in making his application. Accordingly, the jurisdictional objections are upheld, and the substantive application for an unfair dismissal remedy is dismissed.[1]

[6] My detailed reasons follow. However, I further note that my Chambers will verbally step the Applicant through the decision and order.

[7] The Respondent submits that the Applicant commenced employment with the Respondent on 18 October 2021 and his employment was terminated within his probationary period on 7 February 2022.

[8] The Applicant was employed in the role of a Cleaner/Detailer and classified as Level R1 under the Vehicle Repair, Services and Retail Award 2020.[2] During his employment, the Applicant was paid at a rate above the applicable minimum award rate for that classification and time period, according to the Respondent.

[9] The Respondent submits that between the period of 10 January 2022 and 4 February 2022, the Applicant was absent from work without prior approval and did not notify the Respondent's management of his inability to attend work. Further, the Respondent attempted to contact the Applicant in this period to ask about his whereabouts, but the Respondent received no response from the Applicant. The Respondent notes that having determined that the Applicant was not the right fit for the company, it dismissed the Applicant.

[10] It was said that whilst the Applicant was paid in lieu of notice, after his dismissal the Applicant presented to the Respondent dealership enquiring about a letter of termination and a separation certificate. A copy of the Applicant's termination letter and separation certificate was not available at the Respondent's car dealership; those documents being located within its Human Resources Department, offsite. Therefore, the Respondent submits that it posted a copy of the letter of termination and separation certificate to the Applicant via mail, in line with his request.

[11] The Applicant disputes that he did not notify the Respondent of having been sick when absent from the workplace, and further notes that he had contacted the Respondent to advise that his friend had significant mental health issues and he required leave. The Applicant further considers that he was underpaid, that he was never provided with a warning, and he was unfairly dismissed.

[12] Section 390(1)(a) of the Act provides that the Commission must, relevantly, be satisfied that a person was 'protected from unfair dismissal' at the time of being dismissed before it may make an order for an unfair dismissal remedy in the person's favour. Section 382(a) provides that the first of the two requirements that must be satisfied in order for a person to be 'protected from unfair dismissal' is that the person is an employee who has completed a 'period of employment' with the relevant employer of at least the 'minimum employment period'. Section 383(a) provides, in respect of an employer which is not a small business employer, that the 'minimum employment period' is 6 months ending at the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal (the period is one year for a small business employer).

[13] The evidence shows that the Applicant commenced employment with the Respondent in October 2021. Both Applicant and Respondent agree that this was the case. The Applicant's employment contract specifies that the Applicant's employment commenced on 18 October 2021, which aligns with the Applicant's recollection.

[14] On his Form F2 filed on 21 March 2025, the Applicant had said his dismissal took effect on 6 March 2022. On his Form F2 filed on 17 July 2025 (which was filed to provide additional information regarding an extension of time), the Applicant said his dismissal took effect on 7 February 2022. The Respondent, on its Form F3, stated the Applicant's dismissal took effect on 7 February 2022 as shown in the letter of termination. As noted, I have found that the Applicant's dismissal took effect on 7 February 2022, and therefore he has not completed the minimum employment period.

[15] In Herc v Hays Specialist Recruitment (Australia) Pty Ltd (Herc),[3] the Full Bench of this Commission observed that the question of whether an application for an unfair dismissal remedy is made outside the statutory timeframe is not strictly a jurisdictional objection.[4] It appears to have been proposed that an unfair dismissal application made outside the time required in s 394(2) is not validly made unless, and until, a further period has been granted.[5]

[16] As to the order by which jurisdictional objections to unfair dismissal applications may be considered, the decisions of Herc, The Church of Ubuntu Inc v Ms Lainie Chait[6] and The Church of Ubuntu Inc v Ms Lainie Chait[7] provide guidance in this respect. In the circumstances of this case and, as identified, for the sake of fulsomeness, I have addressed the jurisdictional objections of the Applicant having not completed the minimum employment period and that his unfair dismissal application was made outside of the statutory period.

[17] For an unfair dismissal application that has been filed late to proceed, it is necessary for the applicant to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[18] Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are 'exceptional circumstances'. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[8] It is accepted that exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together, can be considered exceptional.[9]

[19] In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[10] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however, all of the circumstances must be considered.[11]

[20] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[12] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[13]

[21] In Nulty, the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of 'exceptional circumstances'. The Full Bench said that:

In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.[14]

[22] It is accepted that ignorance of an available remedy and associated time limits does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[15]

[23] In respect of the delay, the Applicant explained in his written materials that the following circumstances led to the delay in making his application:

(a) that he is partially cognitively impaired;

(b) he was required to attend a funeral;

(c) he has asbestos in his lung;

(d) he is unable to use a mobile phone properly;

(e) his wife passed away; and

(f) his girlfriend had significant mental health issues.

[24] Whilst the Applicant provided other information about his personal circumstances, those circumstances were both extraordinarily sensitive in nature and do not warrant repeating, and in my view, were not relevant to the question of whether there were plausible reasons or reason for the delay period or part thereof. It is noted that the Applicant again pressed he was underpaid and unfairly dismissed, expressing that he could have worked for the Respondent for ten years.

[25] The Applicant's evidence suggests that his wife unfortunately passed away some time prior to his employment with the Respondent. Whilst appreciative that the grieving process is very much dependent on the individual, it is not evident from the Applicant's account that he was so incapacitated by grief that it rendered him unable to address activities of daily living. It is relevant to highlight the Respondent's submission that shortly after the Applicant's dismissal, the Applicant visited the Respondent's dealership (in early to mid-February 2022) to request copies of his separation certificate and letter of termination.

[26] Similarly, it is unclear how the asbestos in the Applicant's lung (evinced by a pathology report), the requirement to attend a funeral, or his girlfriend's significant mental health issues, impacted the Applicant such that he was unable to make an unfair dismissal application within the requisite statutory period, or why this caused a delay in making the application thereafter (up until the date of lodgement). Again, the Applicant demonstrated capacity post dismissal to attend the Respondent dealership to request copies of his separation certificate and letter of termination, be sent to him. Further, and insofar as it is relevant, it is unclear when the Applicant's girlfriend suffered a mental health crisis or when the funeral was held.

[27] The Respondent questioned the veracity of the Applicant's medical evidence to support the contention that the Applicant had a cognitive impairment at the relevant time, noting the Applicant had provided a medical certificate stating he has a disability, but part of the text of the document was missing and the date of the certificate was unclear. Notwithstanding the evident deficiencies of the medical certificate, I am content to find that Applicant has cognitive impairment based on his self-identification of the impairment, the medical certificate, and part of a cognitive assessment that had been filed. I further observe that the Applicant's interactions with Chambers whilst polite and civil, demonstrate cognitive impairment such that the Applicant required repeated verbal instruction, clarification and guidance. Once repeated the Applicant was responsive to the directions and guidance provided in that he provided a response, albeit at times the material he provided in his handwritten notes was not necessarily relevant to the issue identified and unfortunately the Applicant did not present for hearing notwithstanding multiple reminders via email and telephone.

[28] I am therefore of the view that part of the delay in making the unfair dismissal application can be attributed to the Applicant's cognitive impairment. That is, I accept that it may take the Applicant longer to prepare an application than a person absent cognitive impairment. However, I am not satisfied that the entire period of the delay of some three years can be explained by the Applicant's cognitive impairment.

[29] The Applicant has provided in his supporting materials a copy of a 'Centrelink Confirmation of Concession Card Entitlement', apparently signed by the Applicant on 8 August 2024, for the period 8 August 2024 to 22 August 2024. The document notes that the Applicant is receiving social security payment. It therefore strikes me that the Applicant had capacity following his dismissal, and specifically during the delay period, to complete the requisite requirements to obtain a Concession Card and an entitlement to Centrelink payments.

[30] Accordingly, I do not consider the matters relied upon by the Applicant, individually or together, to be an acceptable or reasonable explanation for the whole delay period. The absence of an acceptable explanation for the whole delay period, notwithstanding the concession that part of the delay may be attributable to the Applicant's cognitive impairment, weighs against a conclusion that there are exceptional circumstances. In arriving at my finding, I have considered the delay as the period beyond the 21-day period.

4.2 Whether the person first became aware of the dismissal after it had taken effect

[31] I am of the view that the Applicant became aware of his dismissal at the time that it took effect, being no later than 7 February 2022. I therefore consider this to be a neutral consideration.

4.3 Action taken by the person to dispute the dismissal

[32] I have referred to the Respondent's submission that the Applicant presented to the Respondent's dealership requesting a copy of his letter of termination and separation certificate. I have not elaborated on the purported interaction that the Respondent submits unfolded on that day between the Executive General Manager and the Applicant. It is sufficient to observe that the Respondent formed the view that the Applicant was highly emotive. However, on balance the material before me does not suggest that the Applicant disputed his dismissal in the manner one might. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

[33] The Respondent submitted that it would be subject to prejudice if the extension of time were granted as it had acted in accordance with its legal obligations and now faced the burden or responding to a substantially out-of-time application with no valid justification.

[34] When considering the factor of prejudice to the employer, the Commission considers whether the delay has caused the employer to suffer prejudice and whether the purported prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect.

[35] In GHD Pty Ltd v Black (GHD),[16] it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[17] In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.[18] The length of the delay in this case is significant and greater than that of 168 days. I am satisfied that a delay of some three years will give rise to the type of 'prejudice' as referred to in GHD, and this therefore weighs against a finding of exceptional circumstances.

[36] In Telstra-Network Technology Group v Kornicki,[19] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[20]

[37] There is a factual dispute between the parties in respect of the Applicant's purported absence from the workplace, notification of the same and inability to be contacted during that period. Whilst on this basis the merits would usually prove to be a neutral factor, it appears uncontentious that the Applicant's employment was terminated before he had served six months continuous service. The Applicant's employment commenced in October 2021 according to both the Applicant and the Respondent and concluded on 7 February 2022. The Applicant had therefore not completed the minimum period of employment as provided in s 382(a) of the Act. As such, it is apparent that the Applicant was not protected from unfair dismissal.

4.6 Fairness as between the person and other persons in a similar position

[38] The criterion of 'fairness as between the person and other persons in a similar position', was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[21]

[39] Based on the submissions filed, I am satisfied that the criterion of fairness between the Applicant and other persons in a similar position, weighs strongly in favour of a finding that there are not exceptional circumstances. The Applicant had not completed the minimum employment period and, similarly, to other applicants who have failed to serve the requisite period as set out in s 382(a) of the Act, he is unprotected from unfair dismissal.

[40] The test of exceptional circumstances in s 394(3) of the Act is a stringent one, which for the reasons so described has not been met. In these circumstances, having considered all evidence and submissions, I am not convinced there are exceptional circumstances such that an extension of time should be granted, and, on balance, I find that the Applicant had not completed the minimum employment period.

[8] [2011] FWAFB 975 (Nulty), [13].

[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2015] FWCFB 901, [39].

[12] Long v Keolis Downer [2018] FWCFB 4109, [40].

[13] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287, [12].

[15] Rose v BMD Constructions Pty Ltd [2011] FWA 673, [11].

[16] [2023] FWCFB 38 (GHD), [51].

[17] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556; Brodie-Hanns v MTV Publishing Ltd

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Michael John Chinnery v Morley City Nissan [2025] FWC 2244

At a glance

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Judgment (69 paragraphs)

Michael John Chinnery v Morley City Nissan [2025] FWC 2244 (31 July 2025)

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Legislation Cited (2)

Cases Cited (3)